DePaul Law Review DePaul Law Review

Volume 28 Issue 3 Spring 1979 Article 7

Uses and Misuses of Deadly Force Uses and Misuses of Deadly Force

Edward Ronkowski Jr.

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USES AND MISUSES OF DEADLY FORCE

Edward Ronkowski, Jr.*

Article Seven of the Illinois Criminal Code grants police officers wide dis-cretion in their decisions to use, or refrain from using, deadly force toprotect themselves, to stop forcible felonies, to prevent escape, or to pro-tect the public. Because the unintentional shooting of innocent personssometimes results from legal uses of deadly force, the Illinois Legislature ispresently considering bills which would eliminate some justifications forthe use of deadly force. In this Article, Mr. Ronkowski calls for the estab-lishment of internal safety and policy rules within police departments, vio-lation of which would lead to dismissal from the force. The author alsoasserts that a police officer should operate under an affirmative duty torestrain a fellow officer from using deadly force irresponsibly.

A police officer becomes "prosecutor, judge, jury, and executioner'1 whenhe commits a justifiable homicide in one of the six instances permitted underIllinois law. Although the private citizen is also authorized to use deadlyforce in prescribed circumstances, the citizen's power is less potent than thatof the police officer.

The decision to use deadly force requires critical judgment. The policeofficer's failure to act can result in injury or loss of life to an innocent party.Conversely, an officer's improper use of deadly force can result in dismissalfrom the police force, civil liability, and criminal prosecution. Where thelegal justification for the use of deadly force is not apparent from the cir-cumstances, either state 2 or federal3 court is an available forum for the in-jured party.

Currently, the Illinois Criminal Code permits the use of deadly force inthe following instances: 1) to prevent death or great bodily harm; 4 2) toprevent the defeat of an arrest by resistance or escape where the arrestee is

* Assistant State's Attorney, Will County, Illinois. B.S., University of Houston; J.D. De-

Paul University College of Law.1. Screws v. United States, 325 U.S. 91, 106 (1945).2. See People v. Cash, 326 I11. 104, 157 N.E. 76 (1927) (police officer was convicted of

manslaughter for shooting at a fleeing motorist and thus killing a passenger, despite the officer'sdefense that the motorist feloniously tried to run him over); Tutle v. Forsberg, 331 I!. App.503, 73 N.E.2d 861 (1947) (officer held liable for illegally discharging his gun while attemptingto make a lawful arrest).

3. See Fults v. Pearsall, 408 F. Supp. 1164 (E.D. Tenn. 1975) (deputy sheriff who shotplaintiff fleeing from arrest for misdemeanor was liable for violation of plaintiffis civil rights).

4. ILL. REV. STAT. ch. 38, § 7-1 (1977):Use of Force in Defense of Person. A person is justified in the use of force against

another when and to the extent that he reasonably believes that such conduct isnecessary to defend himself or another against such other's imminent use of unlaw-ful force. However, he is justified in the use of force which is intended or likely tocause death or great bodily harm only if he reasonably believes that such force isnecessary to prevent imminent death or great bodily harm to himself or another, orthe commission of a forcible felony.

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either (a) committing a forcible felony, (b) attempting to escape by the use ofa deadly weapon, or (c) otherwise indicating he will inflict great bodily harmunless arrested without delay; ' 3) to prevent a forcible felony; 6 4) to preventa felony in a dwelling; 7 5) to prevent an assault after a violent, riotous entryinto a dwelling; 8 or 6) to prevent an escape from a penal institution. 9 Theserights are extended to both police officers and citizens with the exception

5. ILL. REV. STAT. ch. 38, § 7-5 (1977):Peace Officer's Use of Force in Making Arrest. (a) A peace officer, or any person

whom he has summoned or directed to assist him, need not retreat or desist fromefforts to make a lawful arrest because of resistance or threatened resistance to thearrest. He is justified in the use of any force which he reasonably believes to benecessary to effect the arrest and of any force which he reasonably believes to benecessary to defend himself or another from bodily harm while making the arrest.However, he is justified in using force likely to cause death or great bodily harmonly when he reasonably believes that such force is necessary to prevent death orgreat bodily harm to himself or such other person, or when he reasonably believesboth that:

(1) Such force is necessary to prevent the arrest from being defeated by resis-tance or escape; and

(2) The person to be arrested has committed or attempted a forcible felony or isattempting to escape by use of a deadly weapon, or otherwise indicates thathe will endanger human life or inflict great bodily harm unless arrested with-out delay.

(b) A peace officer making an arrest pursuant to an invalid warrant is justified in theuse of any force which he would be justified in using if the warrant were valid,unless he know [sic] that the warrant is invalid.

6. ILL. REV. STAT. ch. 38 § 7-3 (1977):Use of Force in Defense of Other Property. A person is justified in the use of

force against another when and to the extent that he reasonably believes that suchconduct is necessary to prevent or terminate such other's trespass on or other torti-ous or criminal interference with either real property (other than a dwelling) orpersonal property, lawfully in his possession or in the possession of another who is amember of his immediate family or household or of a person whose property he hasa legal duty to protect. However, he is justified in the use of force which is in-tended or likely to cause death or great bodily harm only if he reasonably believesthat such force is necessary to prevent the commission of a forcible felony.

7. ILL. REV. STAT. ch. 38, § 7-2 (1977):Use of Force in Defense of Dwelling. A person is justified in the use of force

against another when and to the extent that he reasonably believes that such con-duct is necessary to prevent or terminate such other's unlawful entry into or attackupon a dwelling. However, he is justified in the use of force which is intended orlikely to cause death or great bodily harm only if:

(a) The entry is made or attempted in a violent, riotous, or tumultuous manner,and he reasonably believes that such force is necessary to prevent an assaultupon, or offer of personal violence to, him or another then in the dwelling, or(b) He reasonably believes that such force is necessary to prevent the commissionof a felony in the dwelling.

8. Id.9. ILL. REV. STAT. ch. 38, § 7-9 (1977):

Use of Force to Prevent Escape. (a) A peace officer or other person who has anarrested person in his custody is justified in the use of such force to prevent theescape of the arrested person from custody as he would be justified in using if hewere arresting such person.

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that citizens cannot use deadly force to prevent the defeat of an arrest or toprevent an escape from a penal institution.10 In the Eighty-first GeneralAssembly, the Illinois Legislature considered several bills that would limitthose situations in which police use of deadly force is presently justified."

This Article will discuss the justifications for the use of deadly force inIllinois and will focus upon judicial interpretation of the applicable statutes.The proposed legislation will be examined and a preferable alternative willbe suggested.

THE POLICE OFFICER'S RIGHT TO CARRY FIREARMS

Before the justifications for the use of deadly force can be examined, theextent of a policeman's right to carry firearms must be considered. By virtueof his office, the police officer acquires special privileges to carry firearmswhich the private citizen does not share. Only those public employees whoare required by their employment to make arrests and preserve public orderare considered police officers for these purposes. 12

One privilege vests police officers with authority to carry firearms withintheir jurisdictional boundaries while on duty.1a Another privilege allows

(b) A guard or other peace officer is justified in the use of force, including forcelikely to cause death or great bodily harm, which he reasonably believes to benecessary to prevent the escape from a penal institution of a person whom theofficer reasonably believes to be lawfully detained in such institution under sen-tence for an offense or awaiting trial or commitment for an offense.

10. See ILL. REV. STAT. ch. 38, § 7-5 (1977) (authority given only to police officer to usedeadly force where necessary to make a lawful arrest); ILL. REV. STAT. ch. 38, § 7-9 (1977)(authority given only to police officer to use deadly force to prevent an escape from a jail orpenitentiary). See notes 5 & 9 supra.

11. House Majority leader Michael J. Madiagan introduced six bills offering different varia-tions of the same statute. They are currently slated for interim study. See Bagley, The Use ofDeadly Force in Arrests, Chicago Daily L, Bulletin, Dec. 8, 1978, at 1, col. 1. [hereinaftercited as Bagley]. The author reported that:

[T]he suggested changes ... [include] ... limit[ing] the use of deadly force bypolice officers to crimes involving the use or threat of deadly force, or that [sic] adelay in arrest will create a substantial risk that the suspect will cause death orserious bodily harm. Other suggestions . . .[include] exclud[ing] burglary from thedefinition of forcible felony-or at least non-residential burglary .... The purpose,according to Madigan, is to allow for a full and open debate on the entire issue ofdeadly force both in the public and legislative forum.

id. at 3.12. ILL. REV. STAT. ch. 38, § 2-13 (1977), defines a "peace officer" as "any person who by

virtue of his office or public employment is vested by law with a duty to maintain public orderor to make arrests for offenses, whether that duty extends to all offenses or is limited to specificoffenses". See People v. Perry, 27 I11. App. 3d 230, 327 N.E.2d 167, (1st Dist. 1975) (securityguards employed by housing authority were not "special policemen" and had same status asprivate individuals, who have no authority to arrest citizens for ordinance violations). But seePeople v. Picka, 44 I11. App. 3d 759, 358 N.E.2d 937 (5th Dist. 1976) (state university securityofficers are peace officers within their specific jurisdiction as defined by statute).

13. See ILL. REV. STAT. ch. 38, § 24-1 (1977) (listing prohibitions of the use and possessionof firearms) and ILL. REv. STAT. ch. 38, § 24-2 (1977) (exempting policemen from pertinentparts of § 24-1 and conferring upon officers the right to carry firearms).

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police officers to carry concealed firearms when not on their own land or intheir fixed place of business. 14 Additionally, police officers generally cancarry weapons over a wider geographic territory than private citizens. 15

Some state's attorneys have overbroadly interpreted these statutes and haveconcluded that any off-duty police officer can carry his firearm loaded andconcealed anywhere within the state. 16 Although there is some confusion asto whether or not guards are entitled to carry arms when off-duty, the Il-linois Judiciary is clearly sympathetic to police officers and allows them widelatitude in their right to carry firearms while off-duty. 17 Actually, the of-ficer's privilege to carry weapons is limited to his jurisdictional boundarieswhile on duty. 18 Thus, an off-duty police officer arresting a person outside

14. ILL. REV. STAT. ch. 38, § 24-1(a) 4 & 24-1(a) 10 (1977) (footnotes omitted), states:Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of

weapons when he knowingly:

(4) Carries concealed in any vehicle or concealed on or about his person exceptwhen on his land or in his own abode or fixed place of business any pistol, revolver,stun gun or laser or other firearm; or

(10) Carried or possesses in a vehicle or on or about his person within the corpo-rate limits of a city, village or incorporated town, except when on land or in his ownabode or fixed place of business, any loaded pistol, revolver, stun gun or laser. orother firearm.

ILL. REV. STAT. ch. 38, § 24-2(a)(1) (1977), authorizes an exemption from the above for policeofficers:

Exemptions. (a) Subsections 24-1(a)(3), 24-1(a)(4) and 24-1(a)(10) do not apply to oraffect any of the following:

(1) Peace officers or any person summoned by any such officers to assist in mak-ing arrests or preserving the peace while he is actually enaged in assisting suchofficer.

15. Survey, Officers Carry Firearms, 29 ILL. POLICE ASS'N OFFICIAL J., Feb. 1976, at 62(officers on duty can carry their firearms outside their jurisdiction in every state but NorthCarolina).

16. See, e.g., C. Cavanaugh, in Model Test of the Illinois Firearm Training Program 34, atquestion 125 (1976) (published by the Illinois Local Government Law Enforcement OfficersTraining Board, 301 North Second Street, Springfield, Illinois) [hereinafter cited as ModelTest].

17. See Arrington v. City of Chicago, 45 Ill. 2d 316, 259 N.E.2d 22 (1970). In Arrington,prison guards attacked ILL. REV. STAT. ch. 38, § 24-2(a)(4), which prohibited them from carry-ing arms when not on duty. The court distinguished prison guards from police officers

A peace officer . . . has the duty to maintain public order wherever he may be; hisduties are not confined to a specific time and place as are those of a prison guard. Itis for this reason, and not because a peace officer may be subject to attack, that heis allowed to carry a weapon at all times.

Id. at 24. See also People v. Barret, 54 Ill. App. 3d 994, 370 N.E.2d 247 (2d Dist. 1977), wherean off duty police officer working as a security guard in a retail store was deemed a peace officerin execution of his duties when he arrested the defendants for assault and battery, and shoplift-ing. The court cited Arrington and stated that an officer's duties are not constrained by specifictime or place limitations; and People v. Perry, 27 III. App. 3d 230, 327 N.E.2d 167 (1st Dist.1975), where the court cited Arrington and stated that peace officers are required by theiremployment to give full time to the preservation of public order.

18. See Nedrud, Officers Carrying Guns Outside Their Jurisdiction, I11. L. Crim. Investi-gation, § A 3.3-8 (1978).

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his territorial jurisdiction possesses only the limited rights of a private citizento use deadly force. 19

WHAT IS DEADLY FORCE?

A discussion of deadly force usually focuses upon questions involving thepermissible use of firearms. 20 It should be noted, however, that theemployment of nightsticks, broken bottles, 21 tear gas, 22 bricks, 23 knives,boots, 24 large vicious dogs 25 and even bare fists, 26 depending on how they

19. Cf. People v. Carnivale, 21 I11. App. 3d 780, 315 N.E.2d 609 (1st Dist. 1974) (policeofficer acted with legal authority of a citizen in serving a warrant as he was outside of histerritorial jurisdiction), rev'd on other grounds, 61 I11. 2d 57, 329 N.E.2d 193 (1975).

20. See ILL. REV. STAT. ch. 38, § 7-8(a) (1977):Force Likely to Cause Death or Great Bodily Harm. (a) Force which is likely to

cause death or great bodily harm, within the meaning of Sections 7-5 and 7-6,includes: (1) The firing of a firearm in the direction of the person to be arrested,even though no intent exists to kill or inflict great bodily harm; and (2) The firing ofa firearm at a vehicle in which the person to be arrested is riding.

21. ILL. REV. STAT. ch. 38, § 24-1(a)(2); People v. Villabos, 53 I11. App. 3d 234, 368 N.E.2d556 (1st Dist. 1977) (broken bottle is deadly weapon); People v. Fort, 119 I11. App. 2d 530; 256N.E.2d 63 (1st Dist. 1970) (thrown bottle hitting the victim on the back of the head constituteda deadly weapon).

22. ILL. REV. STAT. ch. 38, § 24-1(a)(3), defines "a tear gas projectile or bomb or any objectcontaining noxious liquid gas or substance" as a deadly weapon. See Chaudoin v. Fuller, 67Ariz. 144, 192 P.2d 243 (1948); Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P.2d 886 (1940).

Illinois has not at present addressed the question of whether mace is a noxious liquid gasunder the statute. A California court, in Cook v. Superior Court of San Diego County, 4 Cal.App. 3d 822, 84 Cal. Rptr. 664 (1970), found mace to be tear gas under a statute similar to thatof Illinois. But see Jackson v. City of Baton Rouge, 286 So. 2d 743 (La. Ct. App. 1973), where itwas held that mace was not a deadly weapon because the injury was minor and the arrestingofficer used the chemical in lieu of his nightstick to subdue a drunk and disorderly defendant.

23. People v. Williams, 56 I11. App. 2d 159, 205 N.E.2d 749 (1st Dist. 1965) (brick thrownby a gang of youths at a passing cab constituted deadly force). See State v. Lee, 36 Del. 11, 171A. 195 (1933) (a brick thrown with force and violence in close proximity to the person of another,or used as a weapon to strike by holding it in hand, is a deadly weapon); Peats v. State, 213 Ind.560, 12 N.E.2d 270 (1938) (stone or brick thrown from a car travelling seventy miles per hourthrough an oncoming truck's windshield was deadly force).

24. People v. Driver, 62 I11. App. 3d 847, 379 N.E.2d 840 (4th Dist. 1978) (defendant'srepeated kicking of fallen police officer constituted deadly force). See Commonwealth v. Bel-monte, 351 N.E.2d 559 (Mass. App. 1976) (three defendants' repeated kicking of fallen officerheld to be assault and battery with a deadly instrument); People v. Rumaner, 45 App. Div. 2d290, 357 N.Y.S.2d 735 (1974) (defendant found guilty of assault with a dangerous instrumentwhen he kicked fallen bartender ten or twelve times in the face with heavy leather boots).Contra, Dickson v. State, 230 Ark. 491, 323 S.W.2d 432 (1959) (shoes that a person wears aspart of his apparel are not deadly weapons within the meaning of the statute defining such).

25. See People v. Torrez, 86 Misc. 2d 369, 382 N.Y.S.2d 233 (1976). Although the Torrezcourt did not view a vicious dog as a deadly weapon, its characterization of a German shepard asa dangerous instrument suggests that in the proper circumstances a court may find a vicious dogto be an instrument of deadly force.

26. People v. Swiontek, 391 Ill. 618, 63 N.E.2d 741 (1945) (defendant convicted of murderfor beating and kicking victim to death); People v. Horne, 110 Ill. App. 2d 167, 249 N.E.2d 282(1st Dist. 1969) (beating with fists and kicking can result in and constitute murder).

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are used, can constitute deadly force. The important variables are the forcewith which the instruments are used and the strength of the user. If theforce and the strength of the aggressor are great enough, any object can beused in a manner constituting deadly force. 2 7 The use of firearms alone,however, almost categorically will be construed as deadly force, irrespectiveof the force and strength variables. In fact, a police officer's mere dischargeof a firearm in the direction of a person to be arrested or at the arrestee'svehicle is deadly force per se, 28 regardless of the officer's intent. Thus, apolice officer was convicted of voluntary manslaughter when he killed a flee-ing speeder with what was intended to be a warning shot.2 9

JUSTIFICATIONS FOR USE OF DEADLY FORCE IN ILLINOIS

Each justification for the use of deadly force in Illinois requires the actorto proceed on the basis of "[a reasonable belief] that deadly force is neces-sary to prevent" some prescribed illegal act.3 0 This requirement defines theright to use deadly force and establish the boundaries of the ,privilege.

Reasonable Belief Requirement

In Illinois, the police officer or citizen is protected if he reasonably be-lieved that the use of deadly force was necessary. 3 ' The perceived dangerneed not be real,3 2 and a person under great stress and excitement is notrequired to use infallible judgment in the space of a few seconds.3 3

27. See People v. Carter, 410 I11. 462, 465, 102 N.E.2d 312, 313 (1951), where the IllinoisSupreme Court stated:

A deadly weapon is not necessarily manufactured for the special purpose of takinganimal life, nor need it be of any certain size or description. This court has defineda deadly weapon as "an instrument that is used or may be used for the purpose ofoffense or defense and capable of producing death. Some weapons are deadly perse; others, owing to the manner in which they are used, become deadly, while asmall pocket knife, a cane, a riding whip, a club or baseball bat may be so used asto be a deadly weapon .. " Those instrumentalities not considered deadly per semay thus clearly become such by the manner in which they are used.

See also People v. Drumheller, 15 I11. App. 3d 418, 421, 304 N.E.2d 455, 458 (2d Dist. 1976)(because size and strength disparity was so great, a blow from defendant's bare fist to a four-teen-month-old child constituted deadly force).

28. ILL. REv. STAT. ch. 38, § 7-8(a) (1977).29. People v. Klein, 305 I11. 141, 137 N.E. 145 (1922).30. ILL. 1Ev. STAT. ch. 38, §§ 7-1, -2, -3, -5, -9 (1977). See notes 4, 5, 6, 7, 9 supra.31. ILL. REv. STAT. ch. 38, § 7-1 (1977); People v. Lockett, 85 11. App. 2d 410, 414, 229

N.E.2d 386, 387-88 (1st Dist. 1967).32. People v. Kelly, 24 I11. App. 3d 1018, 322 N.E.2d 527 (2d Dist. 1975); People v. Brum-

beloe, 97 Ill. App. 2d 370, 240 N.E.2d 150 (1st Dist. 1968); People v. Lockett, 85 111. App. 2d410, 229 N.E.2d 386 (1st Dist. 1967).

33. People v. Lenzi, 41 111. App. 3d 825, 355 N.E.2d 153 (1st Dist. 1976) (personthreatened by several bullies does not have time to reason out every response he should makeor to judge precisely how much force he has to use to repel the attack and ensure his safety);People v. Harling, 29 I11. App. 3d 1053, 331 N.E.2d 653 (1st Dist. 1975) (because defendant's

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Nevertheless, a fine line distinguishes the legally protected reasonable beliefand the unprotected mere suspicion. 34 Under current Illinois law, a reason-able belief justifying the use of deadly force in defense of oneself or anothergenerally will not be found until a weapon is actually observed. However,where the person against whom the force is directed is known to carry aweapon, or indicates that he is carrying a weapon on his person and makes amove to use it, an exception to this general rule will lie.3 5

Judicial interpretations often confuse the "reasonable belief' requirement.The Illinois statute indicates that a reasonable belief based on either an ac-tual or apparent danger will justify the use of force necessary to preventeither imminent death or great bodily harm. 36 However, decisions in otherstates with similar justifiable-use-of-force statutes have suggested that onlythe actual, as opposed to the apparent, facts are relevant in determiningwhether a belief was reasonable. 37

Illinois decisions, nevertheless, appear to follow the preferred constructionof the statute. In People v. Morgan, 38 the appellate court for the first districtreversed the voluntary manslaughter conviction of a detective agency em-ployee who had killed a disorderly waiter. The court noted that the waiterhad attempted to remove something from his pocket after mentioning hehad a gun, and it concluded that the detective may have labored under a

belief that his conduct was necessary to save himself from death or greatly bodily harm was areasonable one, he was not required to use infallible judgment in the space of a few secondswhile he was under great stress and excitement).

34. Compare People v. Munguia, 33 I11. App. 3d 880, 330 N.E.2d 574 (2d Dist. 1975), andPeople v. Smith, 58 II1. App. 3d 784, 374 N.E.2d 1285 (lst Dist. 1978), with People v. Reeves,47 111. App. 3d 406, 362 N.E.2d 9 (5th Dist. 1977), and Fortunto v. Police Board of Chicago, 38I11. App. 3d 950, 349 N.E.2d 521 (lst Dist. 1976). In Munguia, the defendant was found guiltyof voluntary manslaughter when he extricated himself from a fight in a bar and later returnedarmed with a knife. The fight was resumed and defendant's belief that deadly force was neces-sary to protect himself and a friend was held unreasonable, particularly because the victim'sresumed aggression may have been provoked by the defendant's return with a knife. In Smith,the court held that mere disparity in size and verbal threats did not allow the defendant, whowas standing in the street, to shoot a man seated in a car who had threatened him while holdinga screwdriver. Contrarily, the Reeves court held that a wife who shot her husband as he drag-ged, beat, and threatened her was justified in the use of deadly force even though her husbandwas unarmed. The court relied on the fact that she had in the past been hospitalized as a resultof beatings inflicted by her husband. In Fornuto, an escaping suspect turned on an officer in hotpursuit and lunged at him with a knife. The officer sidestepped the lunge and then shot thesuspect in the back. At trial, there was a question as to whether the victim was running awaywhen shot or whether he was still close enough to present an imminent threat to the officer.The court held, in part, that because only a few seconds had elapsed between the attack andthe retaliation, infallible judgment was not required of the officer.

35. People v. Morgan, 114 I11. App. 2d 421, 252 N.E.2d 730 (lst Dist. 1969).36. ILL. REV. STAT. ch. 38, § 7-1 (1977).37. See the often cited case of Commonwealth v. Duerr, 158 Pa. Super. 484, 492, 45 A.2d

235, 239 (1946) (the felony in fact must actually be committed). See also Petrie v. Cartwright,114 Ky. 103, 70 S.W. 297 (1902).

38. 114 Ill. App. 2d 421, 252 N.E.2d 730 (1st Dist. 1969).

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reasonable belief that deadly force was necessary to protect himself. Thewaiter was later determined to be unarmed. Illinois appellate courts havestated that in this type of situation the actual presence of a gun is theoreti-cally immaterial; the words coupled with the directed action support thereasonable belief of danger. 39 However, in 1890 the Illinois Supreme Courteffectively prohibited the use of deadly force where there is no indication ofthe presence of a weapon. 40 For example, if a suspect merely reaches to-ward his pocket, 4' or draws his hand from below his waist, as if drawing aweapon, 42 or places his hand in his pocket without mention of a weapon, theuse of deadly force is not justified.

The perceptions that form the basis of a reasonable belief need not belimited to the instant circumstances. For example, in People v. Honey,4 3 thefirst district appellate court reversed a civilian defendant's manslaughterconviction in consideration of his prior antagonistic encounters with the de-ceased. The defendant had engaged in a fist fight with the deceased fivedays before the fatal shooting. On the following day, the decedentthreatened the defendant with a gun, but the defendant fled unharmed.Three days later they scuffled. The decedent, while rushing defendant withhis hand in the same pocket from which he had produced the gun previ-ously, again threatened to kill the defendant. The court found the defend-ant's perception to be reasonable at the time he used deadly force, eventhough a later search showed the deceased had been unarmed. Honey thusillustrates an exception, based on the existence of prior armed encounters, tothe general rule that mere movement toward a pocket, absent mention of aweapon, cannot justify the use of deadly force. 4 4

Compare Honey with People v. Millet, 45 where threats accompanied bythe antagonist's fumbling inside a car trunk were held insufficient to justifythree shots in the back. The first district appellate court reasoned that Milletshould have waited until he actually saw a weapon or until his antagonistfaced him with one.

39. See People v. Diaz, 38 II1. App. 3d 447, 348 N.E.2d 199 (1st Dist. 1976) (decreasedneed not be armed in order for a person to entertain a reasonable belief of danger); People v.Adams, 113 II1. App. 2d 205, 252 N.E.2d 35 (1st Dist. 1969) (same).

40. Walker v. People, 133 I11. 110, 24 N.E. 424 (1890).41. People v. Scimeni, 316 III. 591, 147 N.E. 484 (1925); People v. Pietrzyk, 54 I11. App. 3d

738, 369 N.E.2d 1299 (1st Dist. 1977).42. People v. Carter, 3 I11. App. 3d 121, 278 N.E.2d 209 (1st Dist. 1971). The antagonist

jumped off his bar stool and struck the defendant bartender in the face hard enough to forcehim backwards against the rear area of the bar. The bartender grabbed a gun and fired twowarning shots in the air. The antagonist then began to draw his hand from below the level ofthe bar as if he were drawing a weapon. The bartender fired into him thinking his hand con-tained a weapon. The court upheld the bartender's conviction because he had fired absent areasonable belief that the antagonist's hand contained a weapon capable of causing great bodilyharm to the bartender.

43. 69 I11. App. 2d 429, 217 N.E.2d 371 (1st Dist. 1966).44. See notes 39-41 and accompanying text supra.45. 60 I11. App. 2d 22, 208 N.E.2d 670 (1st Dist. 1965).

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Necessity

Prior to 1961, Illinois statutes permitted deadly force to be used onlywhen "absolutely necessary." Thus, deadly force was justified only if used asa last resort.4 6 The inherent danger in the "last resort" policy was that itbrought the innocent citizen or police officer perilously close to loss of hisown life. 47

Two factors contributed to a more practical interpretation of the wordnecessary." First, the self-defense statute was amended to eliminate the

word "absolutely" with respect to necessity. 48 Second, the requirement thatall other alternatives be exhausted was ameliorated in the case law, indicat-ing a judicial recognition that one faced with threatened force may not havetime to consider every possible response or judge precisely how much forceshould be used to repel an attack or ensure safety. 49

Currently, courts concentrate on whether the overall situation prompted abelief in the necessity of deadly force 50 The courts' fundamental query

46. People v. Stapleton, 300 I11. 471, 133 N.E. 224 (1921) (accused may use deadly forceonly if he has a reasonable and well-grounded belief that he is actually in danger of losing hislife or receiving great bodily harm). The old statute, ILL. REv. STAT. ch. 38, § 367 (1959),containing the "absolutely necessary" requirement, was replaced in 1961. See note 48 and ac-companying text infra.

47. See People v. Stapleton, 300 II1. 471, 133 N.E. 224 (1922). After being struck, knocked,and kicked by his victim, defendant Stapleton went home for his revolver and met the victimagain. The defendant told the victim they were friends, but the victim put his hand into hispocket and pulled out his revolver. About shooting and killing the victim, defendant stated thathe honestly believed he was in actual dange of being killed or receiving great bodily harm. Thecourt reversed defendant's conviction, stating that the use of deadly force is justified if thecircumstances are such to induce in the defendant the belief that he is actually in presentdanger of receiving great bodily harm or of losing his life. Apparent necessity would not besufficient to provoke the use of deadly force and the court stated that the fear should be thatwhich a reasonable person would have under the circumstances.

As recently as 1966, the appellate court for the first district aflirmed a conviction for murderand stated that killing in self defense was justified only when "absolutely necessary" to save theactor's own life or prevent great bodily harm. Victim's pushing the defendant and advancingtoward him with a board did not justify defendant's use of a revolver in self-defense. People v.King, 76 I11. App. 2d 354; 222 N.E.2d 88 (1st Dist. 1966).

48. ILL. REV. STAT. ch. 38, § 7-1 (1977), replacing ILL. REV. STAT. ch. 38, § 367 (1959):Use of Force in Defense of Person. A person is justified in the use of force against

another when and to the extent that he reasonably believes that such conduct isnecessary to defend himself or another against such other's imminent use of unlaw-ful force. However, he is justified in the use of force which is intended or likely tocause death or great bodily harm only if he reasonably believes that such force isnecessary to prevent imminent death or great bodily harm to himself or another, orthe commission of a forcible felony.

49. People v. Lenzi, 41 111. App. 3d 825, 355 N.E.2d 153 (1st Dist. 1976). See note 33 andaccompanying text supra.

50. People v. Schwartz, 11 I1. App. 3d 959, 297 N.E.2d 671 (1st Dist. 1973), rev'd on othergrounds, 58 Il1. 2d 274, 319 N.E.2d 23 (1974) (a reasonable belief must necessarily dependupon the facts and circumstances surrounding the situation). See People v. Broumas, 24 I1.App. 3d 32, 320 N.E.2d 440 (1st Dist. 1974), for a more recent statement of the grounds forjustifiable use of deadly force in Illinois).

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when determining whether deadly force was necessary in a given situationis: did the defendant make some attempts to avoid the peril? 5 1 An actor'sfailure to consider individual factors will not be decisive in a determinationof the necessity issue. However, in determining whether the overall situa-tion necessitated the use of deadly force, courts often consider whether anattempt at avoidance was made.

The necessity requirement also regulates the kind and amount of forcethat can be used to repel aggression. Thus, if an antagonist threatens a smallamount of force, only a slightly greater amount of force can be used to repelthe aggression.5 2 One who is legally justified in using force, however, is notrequired to afford a criminal violator the opportunity of a fair and equalstruggle. Greater force may be employed as needed to prevent the aggres-sion. 53 For example, if an antagonist draws a knife, a firearm can bepointed as a deterrent. If a knife-wielding antagonist approaches within lung-ing distance and refuses to stop, deadly force can be used in self-defense. 54

Consequently, as soon as the circumstances warrant a reasonable belief thatgreat bodily harm is imminent, the use of deadly force is considered neces-sary.

55

When the requirement of necessity is applied in the setting of an im-mediate physical confrontation, even the most agile person cannot be ex-pected to measure accurately the exact amount of force necessary to repel adanger. Thus, given emergency circumstances, only a gross disparity in theparties' use of force will warrant the imposition of civil or criminal sanc-tions. 56 These life-threatening situations often offer the choice of either re-

51. People v. Jordan, 18 I11. 2d 489, 165 N.E.2d 966 (1960) (to justify the use of deadlyforce for self-defense, defendant must show a good faith endeavor to decline further strugglebefore the mortal blow is given); People v. Adams, 113 I11. App. 2d 205, 216, 252 N.E.2d 35,41 (1st Dist. 1969) (while defendant had no duty to retreat, he showed no attempt to avoid perilin any way before dealing the fatal blows; manslaughter voniction affirmed).

52. People v. Johnson, 35 III. App. 3d 215, 340 N.E.2d 673 (1st Dist. 1975) (seLf-defense isnot available to defendant where initial aggressor retreats from the conflict and defendant as-sumes the role of aggressor); People v. Johnson, 33 I11. App. 3d 957, 338 N.E.2d 895 (5th Dist.1975) (right to defend oneself does not permit pursuit and injury of aggressor afler aggressorabandons the conflict).

53. People v. Williams, 56 I11. App. 2d 159, 205 N.E.2d 749 (1st Dist. 1965) (brick thrownby a gang of youths who were beating their robbery victim, striking a passing cab, constituteddeadly force and justified cab driver's retaliation with a firearm). See North Carolina v. Gosnell,74 F. 734, 738 (1896) (where defendant used rock in attempt to resist arrest by police officer,police officer was justified in shooting defendant to prevent imminent danger of serious bodilyharm to himself).

54. People v. Rorer, 44 I11. App. 3d 553, 358 N.E.2d 681 (5th Dist. 1976) (defendant con-victed of murder for killing an approaching individual who was brandishing a knife, but convic-tion reversed'on grounds that evidence also showed an accidental homicide). See Scott v. Com-monwealth, 301 Ky. 127, 131, 190 S.W.2d 345, 347 (1945) (not required to await the thrust of aknife).

55. ILL. REv. STAT. ch. 38, § 7-1 (1977).56. People v. Harris, 124 I11. App. 2d 234, 260 N.E.2d 325 (1st Dist. 1970) (where deceased

advanced toward defendant during loud discussion, and it did not appear that deceased had any

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1979] DEADLY FORCE

taliation or retreat. Police officers generally do not have the second optionbecause of their legal duty to effectuate an arrest, 57 and because they are notrequired to retreat in the face of resistance to an arrest. 58 Similarly, a pri-vate citizen need not retreat in the face of a deadly threat. 59

As the level of danger changes from moment to moment, the need forresorting to deadly force also changes. In People v. McBride,"0 for example,an argument between a hotel night clerk and defendant ended in a fist fight.The night clerk drew a pistol and a struggle ensued. Defendant then dis-armed the night clerk and the struggle continued until defendant gainedcontrol of the pistol and killed the clerk. In affirming defendant's conviction,the first district appellate court reasoned that one is not ordinarily justifiedin shooting an antagonist after he has been disarmed or disabled. 61

In addition to alternating levels of danger, the relative size and health ofthe parties can determine the need for resort to deadly force. In Schnepf v.

weapon, defendant's use of a firearm was unjustified); People v. Pursley, 302 Il1. 62, 134 N.E.128 (1922) (attempted by deceased to strike accused with his fist did not justify the latter'smeeting the assailant with a knife). Contra, People v. Dowdy, 21 111. App. 3d 821, 316 N.E.2d33 (1st Dist. 1974) (an assailant's use of fists can justify defendant's use of a firearm in selfdefense).

57. ILL. REv. STAT. ch. 38, § 2-13 (1977):"Peace officer" means any person who by virtue of his office or public employ-

ment is vested by law with a duty to maintain puboic order or to make arrests foroffenses, whether that duty extends to all offenses or is limited to specific offenses.

See Lynn v. People, 170 I11. 527, 48 N.E. 964 (1898); State v. Dunning, 177 N.C. 559, 98 S.E.530 (1919) (shooting misdemeanant who threatened officer with a knife allowed even thoughofficer could have avoided injury by retreating).

58. ILL. REV. STAT. ch. 38, § 7-5(a) (1977):Peace Officer's Use of Force in Making Arrest. (a) A peace officer, or any person

whom he has summoned or directed to assist him, need not retreat or desist fromefforts to make a lawful arrest because of resistance or threatened resistance to thearrest. He is justified in the use of any force which he reasonably believes to benecessary to effect the arrest and of any force which he reasonably believes to benecessary to defend himself or another from bodily harm while making the arrest.However, he is justified in using force likely to cause death or great bodily harmonly when he reasonably believes that such force is necessary to prevent death orgreat bodily harm to himself or such other person, or when he reasonably believesboth that:

(1) Such force is necessary to prevent the arrest from being defeated by resis-tance or escape; and

(2) The person to be arrested has committed or attempted a forcible felony or isattempting to escape by use of a deadly weapon, or otherwise indicates that he willendanger human life or inflict great bodily harm unless arrested without delay.

See also Moore v. Chicago Police Board, 42 Ill. App. 3d 343, 347-48, 355 N.E.2d 745, 749 (lstDist. 1976); Migliore v. County of Winnebago, 24 I11. App. 3d 799, 802-03, 321 N.E.2d 476,478-79 (2d Dist. 1974).

59. People v. Vance, 53 Ill. App. 3d 573, 368 N.E.2d 758 (1st Dist. 1977); People v. Har-ley, 24 I11. App. 3d 1053, 331 N.E.2d 653 (1st Dist. 1975); People v. Williams, 57 Ill. App. 2d239, 311 N.E.2d 681 (1974).

60. 130 I11. App. 2d 201, 264 N.E.2d 446 (1st Dist. 1970).61. Id. at 208, 264 N.E.2d at 450.

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Grubb,62 a nineteen-year-old, 175-pound, physically strong suspect, beat a

76-year-old sickly police officer with the officer's own night stick. Duringthe later arrest, he kicked and struck the same officer in the face. A weeklater, the same boy, who had a reputation of resisting arrest and fightingwith officers, unexpectedly emerged from a vehicle and approached the of-ficer. He ignored three commands to halt. The police officer, apparentlyfearing he was going to receive another severe beating, shot and killed hisprevious assailant. While there was another younger officer some twenty feetaway, the court reasoned that his presence could not have prevented thequick, severe blows or kicks that might have caused great bodily harm to theelderly officer. Consequently, deadly force was deemed reasonably necessarybecause of the physical disparities. However, if the officer had not tried towarn the suspect away, he would probably have been held liable for theimproper use of deadly force. 63

The necessity requirement governs not only the actual decision to dis-charge a firearm and the amount of force that can be used, but also prohibitsthe unnecessary drawing and pointing of a firearm. However, in a potentiallydangerous situation, the decision to have a weapon ready for use is usuallyleft to the discretion of the police officer 64 or citizen. Criminal or civil liabil-ity for assault can result from prematurely drawing or pointing a firearm ifthere is no reasonable potential for violence. 6 5 However, courts recognizethat a police officer must be equipped with the confidence to act quickly inan emergency, and accordingly do not severely regulate a policeman's rightto draw his weapon. 66 A weapon may be displayed and pointed before aperson is justified in shooting. 67 Thus, a firearm can be drawn and pointedat an approaching assailant who is bearing a dangerous knife before the as-sailant reaches lunging distance. Yet, only upon reaching the lunging pointmay the knife-bearing assailant be shot in self-defense.

62. 125 I11. App. 2d 432, 261 N.E.2d 47 (4th Dist. 1970).

63. See People v. Broumas, 24 Ill. App. 3d 32, 36, 320 N.E.2d 490, 493 (lst Dist. 1974)(court affirmed conviction because defendant citizen failed to warn assailant away).

64. People v. Attaway, 41 111. App. 3d 837, 354 N.E.2d 448, (lst Dist. 1976) (police officerwho had reasonable grounds to suspect automobile occupants had been involved in an armedrobbery was justified in exiting his squad car with weapon drawn).

65. People v. Nichols, 21 111. App. 3d 432, 315 N.E.2d 663 (4th Dist. 197,4) (defendantfound guilty of aggravated assault for pointing a loaded rifle at an individual who entereddefendant's store and refused to leave); Noschese v. City of New York, 53 App. Div. 2d 566,384 N.Y.S.2d 822 (1976) (liability found for waiving and pointing loaded revolver at arresteedespite fact arrest was otherwise lawful).

66. People v. Williams, 57 I11. 2d 239, 311 N.E.2d 681 (1974), cert. denied, 419 U.S. 1026(1974). In reversing an aggravated assault conviction for drawing and holding a weapon on ahostile mob of twenty-five persons, the court noted the obvious: if the defendant had waiteduntil the mob had advanced before drawing the weapon, the risk of violence may have in-creased.

67. People v. Gatheright, 43 Ill. App. 3d 922, 357 N.E.2d 597 (1st Dist. 1976) (police officerwho reasonably inferred defendant had just committed armed robbery was justified in approach-ing defendant with drawn gun).

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DEADLY FORCE

Even after a person properly decides deadly force is justifiable under oneof the six permissible situations, he is faced with the dilemma of decidingwhen to cease firing his weapon. Just as a person may not lawfully use thealternative of deadly force until all the elements of a particular legal justifica-tion are present, he may continue firing only until the legal objective hasbeen accomplished.6 8 It may be impossible, however, for a person to stopfiring a weapon at the exact instant the justification ceases to exist. During atrial for murder, the evidence in People v. Bailey69 revealed that the defen-dant had shot the two attackers in a small room four times in two seconds.The last two shots, according to the medical examiner, were fired after theassailants had fallen. The appellate court for the first district reversed defen-dant's conviction, holding that during the two seconds defendant fired heacted under a reasonable belief that deadly force was necessary. 70

Medical testimony can reveal the exact activity of a suspect at the time ofa bullet's impact. When a firearm is discharged, the suspect's body positionand movement are reflected by the path of the bullet. A pathologist or med-ical examiner can testify as to the position of the deceased at the exact in-stant of the shooting. Thus, the curve of a path of a bullet through a bodycan indicate whether the deceased was turning toward or away from theperson using deadly force. 71 This is one aid in determining when an ini-tially justified shooting becomes an illegal act. 72

In sum, before deadly force is justified, the actor must have: (1) a reason-able belief, (2) that such force is necessary, (3) to prevent some prescribedillegal act. The preceding discussion has detailed the reasonable belief andnecessity requirements. The following discussion explains the prescribed il-legal acts against which deadly force may be applied.

68. People v. Limas, 45 I11. App. 643, 359 N.E.2d 1194 (2d Dist. 1977) (the self-defensejustification ceased when the antagonist was disarmed and the defendant no longer feared deathor great bodily harm).

69. 27 I11. App. 128, 326 N.E.2d 550 (1st Dist. 1975).70. See also People v. Shipp, 52 Ill. App. 3d 470, 367 N.E.2d 966 (2d Dist. 1977) (defend-

ant fired five shots, the last one entering the deceased in the back).71. See the decisive medical' testimony in People v. Mitchell, 12 I11. App. 3d 960, 299

N.E.2d 472 (1st Dist. 1973) (challenged defendant's version and revealed that deceased wasactually beginning to flee when shot), and that in Fornuto v. Police Board of Chicago, 38 Ill.App. 3d 950, 349 N.E.2d 521 (1st Dist. 1976) (confirmed police officer's questionable and im-peached v6rsion).

72. See People v. Shipp, 52 I11. App. 3d 470, 477, 367 N.E.2d 966, 971 (2d Dist. 1977). Thetrial court jury found defendant guilty of using unnecessary force in a self-defense situation. Theappellate court stated that, although an initially justified shooting may end illegally once thevictim is disarmed or disabled, the circumstance of self-defense does not require that perfectjudgment be exercised. Id. at 477, N.E.2d at 971. Here, defendant's particular circumstanceswarranted a reversal of the lower court's conviction. See also People v. Adams, __ Ill. App. 3d-, -, 388 N.E.2d 1326, 1329 (2d Dist. 1979).

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DEADLY FORCE JUSTIFICATIONS

Threat of Death or Great Bodily Injury

The first statutory authorization for the use of deadly force allows its usewhere there is an imminent threat of death or great bodily harm. 73 Becauseof the subjective nature of this justification, both the assailant's and user'sconduct must be examined. For instance, whether or not a warning wasgiven may be a determinative issue. In an exigent self-defense situation, theneed for immediate action to protect innocent parties may excuse any needfor a warning. 74 Given less perilous self-defense circumstances a jury some-times examines whether the person shooting first fired a warning shot.75

Unfortunately, however, the "courtesy" of a warning shot can position in-nocent bystanders perilously close to serious harm. 76 Warning shots (orshots intended merely to wound) should be justified in the same manner as ashot intended to kill or cause great bodily harm. Indeed, a police officer isnot required to fire a warning shot before using deadly force to prevent anarrestee's escape. 77 In fact, official police training wisely counsels againstwarning shots. 78 The police training policy is founded on case law indicat-ing that a large number of bystanders and other police officers have been

73. ILL. REV. STAT. ch. 38, § 7-1 (1977). See People v. Johnson, 2 111. 2d 165, 117 N.E.2d91 (1954) (a blow to the back of defendant's head held insufficient to support a reasonable beliefof imminent bodily harm); People v. Shields, 18 Iil. App. 3d 1080, 331 N.E.2d 212 (1st Dist.1974) (a person alone who is attacked by a much larger and unarmed assailant need not waituntil he or she is badly beaten before using deadly force); People v. Williams, 15 I11. App. 3d303, 304 N.E.2d 178 (4th Dist. 1973) (use of deadly force unjustifed since victim was not inimmediate danger of being pistol whipped). See also W. Farrand and A. Johnson, in Model Test,note 16 supra, at 27, question 104 (neither the young age of assailant nor the manner of attackwill matter in calculating the risk of imminent bodily harm); C. Cavanaugh, id. at 40 question140 (a water pistol filled with acid offers a threat of great bodily harm).

74. See W. Farrand, A. Johnson & C. Travelstead, in Model Test, note 16 supra, at 38,question 135.

75. Griffin, Private Persons Authority in Making Arrest for Felony, to Shoot or Kill AllegedFelon, Annot., 32 A.L.R.3d 1078, 1085 (1970) [hereinafter cited as Griffin] (a warning shot isone of six factors influencing juries to find in favor of the user of deadly force).

76. See A. HARVIE, THE POLICE OFFICER'S USE OF FORCE: LAW AND LIABILITY 15 (1971);Cook County Sheriffs Training Bulletin: Police Liability 1-766-5, at 11 (July 1, 1976) [hereinaf-ter cited as Training Bulletin]; Comment, The Use of Deadly Force in Arizona by Police Offi-cers, L. & Soc. ORD. 481, 494 (1973) (warning shots may injure bystanders, prompt suspect toreturn fire, unintentionally injure the suspect, or cause other pursuing officers to use deadlyforce when not warranted).

77. 73-3 AELE Law Enforcement Legal Defense Manual, Police Use of Firearm--II, at 10& 19 (1973) [hereinafter cited as Firearms-Il], (published by Americans for Effective LawEnforcement, Inc., South San Francisco, Calif.).

78. J. Roberts, Legal, Moral and Ethical Aspects of the Use of Firearms by Peace Officers inthe State of Illinois 3 (1976) (Illinois Local Governmental Law Enforcement Officers TrainingBoard, 301 North Second Street, Springfield, Illinois).

DEADLY FORCE

injured by warning shots. 79 Further, any warning shots fired in the direc-tion of a person are illegal per se unless the police officer would otherwisebe entitled to shoot that person. 80 Practical considerations suggest that averbal warning, when feasible, is a safer alternative and just as effect. Toprevent juries from giving too much weight to the lack of a warning shot,courts should instruct juries that a warning shot does not have to be firedprior to the use of deadly force.

Escaping Forcible Felons

Only in the case of the first statutory justification, where death or greatbodily harm is threatened, need there be an actual fear of peril to life. 81 Theremaining five legal justifications permit use of deadly force regardless ofjeopardy to life.

The second legal justification for use of deadly force in Illinois is based onthe presence of a reasonable belief that deadly force is necessary to preventan arrest from being defeated by escape.8 2 However, deadly force cannotbe used to effect all arrests. Only where the arrestee is either suspected ofcommitting a forcible felony, or attempting to escape from a crime by theuse of a deadly weapon, will the use of deadly force be justified under thisrule.8 3 Thus, the type of crime involved (forcible felony versus otherfelonies and misdemeanors) in an arrest situation will be controlling.8 4 Thisrule results in some incongruities.

Consider the attempted arrest of an automobile thief. The officer wouldnot be justified in shooting because no forcible felony 85 has been commit-

79. Jones v. Wittenburg Univ., 534 F.2d 1203 (6th Cir. 1976) (suspect killed by warningshot); Young v. Kelly, 60 Ohio App. 382, 21 N.E.2d 602 (1938) (warning shot struck an innocentbystander).

80. ILL. REV. STAT. ch. 38, § 7-8 (1977). See People v. Klein, 305 Ill. 141, 137 N.E. 145(1922). The victim had been escaping from arrest for a misdemeanor when the defendant deputysheriff shot at his moving automobile. Although the defendant yelled "halt" before firing, theIllinois Supreme Court sustained his conviction and reiterated that a police officer can never usedeadly force to effect a misdemeanor arrest. This rule commands regardless of the police of-ficer's intent or the otherwise impossibility of arrest. See also Locke v. Bralley, 50 S.W.2d 240(Tex. Civ. App. 1932) (warning shot that wounded suspect was justified since the situationwarranted use of deadly force); Geiger v. Madden, 58 Pa. Super. 616 (1915) (situation did notwarrant use of deadly force; therefore, warning shot which killed suspect exposed officer toliability).

81. See note 4 supra.82. ILL. REV. STAT. ch. 38, § 7-5 (1977).83. Id.84. For example, in Fults v. Pearsall, 408 F. Supp. 1164 (E.D. Tenn. 1975), a deputy

sheriff shot an escaping misdemeanant and was held liable for violation of plaintiffs civil rights.85. See ILL. REV. STAT. ch. 38, § 7-5 (1977). The applicable statute defines "f6rcible felony"

to mean treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping,aggravated battery, and any other felony that involves the use or threat of physical force orviolence against any individual. ILL. REV. STAT. ch. 38, § 2-8 (1978). See Moreland, The Use of

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ted.8 6 However, if the arrestee had broken into the automobile, stolensome cigarettes and then fled, he would have committed the forcible felonyof burglary. 87 The officer could then justifiably shoot him. Similarly, a highschool student expectorating on a police officer commits the forcible felonyof an aggravated battery.8 8 The insolent youth also could be subjected tothe risk of death if he tried to escape from his crime. Although it would beunusual to find a police officer applying deadly force in these situations, avolatile policeman equipped with the authority of this statute is capable ofworking serious harm within the ambit of his authority.

Although the application of Illinois law alone leads to incongruous result,if the use of deadly force is altogether disproportionate to the magnitude ofthe offense, it may be argued that an officer can be subject to liability underfederal civil rights laws. 89 For example, it is suggested that if an Illinoispolice officer tried to use deadly force against an arsonist who was burninghis own automobile with the intent to defraud an insurer, 90 he may have

Force in Effecting or Reisting Arrest, 33 NEB. L. REV. 408 (1954), where the author points outthat in dealing with a forcible felon's escape, police officers cannot shoot the felon on sight. Thepolice officer must reasonably believe that the shooting is necessary to prevent the escape. Id.at 409.

86. The escapee in this situation would be guilty of the crime of theft, ILL. REV. STAT. ch.38, § 16-1 (1977), a crime that is not included in the forcible felony definition. Id. § 2-8.

87. See, e.g., People v. Lanpher, 59 I11. App. 3d 825, 376 N.E.2d 433 (3rd Dist. 1978),where the court held that the theft of a C.B. radio from a vehicle is a burglary.

88. Compare People v. Woolums, 63 I11. App. 3d 602, 379 N.E.2d 1385 (4th Dist. 1978)(aggravated battery to a police officer must show actual bodily harm), with People v. Lutz, 73Ill. 2d 204, 383 N.E.2d 171 (1978) (insulting and provoking action on a public street may be anaggravated battery). For the applicable statute, see ILL. REV. STAT. ch. 38, § 12-4(b)(8) (1977).

89. See Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976), rev'd on other grounds, sub nonAshcroft v. Mattis, 431 U.S. 171 (1977); Comment, Policeman's Use of Deadly Force in Illinois,48 CrI-KEN'r L. REV. 252, 259 (1971) [hereinafter cited as Comment]. See also United States v.Clark, 31 F. 710 (6th Cir. 1887). In Clark, the defendant military officer shot the deceased ashe was attempting to escape custody. Although this case occurred before the enactment of 42U.S.C. § 1983, the court stated that "the fifty-ninth Article of War provides that any officeraccused of a capital crime [is to be brought before] the civil magistrate." Id. at 711. The courttherefore felt authorized to consider civil sanctions for the officer's excessive use of authorizedforce.

90. ILL. REV. STAT. ch. 38, § 2-8 (1977), includes arson in the list of those crimes classifiedas forcible felonies. It is clear from the statutory definition of arson that there would be manyinstances in which an attempt to commit arson would not warrant the use of deadly force toprevent its commission:

Arson. A person commits arson when by means of fire or explosive, he knowingly:(a) Damages any real property, or any personal property having a value of $150

or more, of another without his consent; or(b) With intent to defraud an insurer, damages any property or any personal

property having a value of $150 or more.Property "of another" means a building or other property, whether real or per-

sonal, in which a person other than the offender has an interest which the offenderhas no authority to defeat or impair, even though the offender may also have aninterest in the building or property.

ILL. REV. STAT. ch. 38, § 20-1 (1977). See Comment, note 89 supra.

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difficulty justifying his action in a federal court. Arson is a forcible felonyunder Illinois law. 9' The police officer is thus statutorily justified in his useof deadly force to prevent an arsonist's escape. However, in the cir-cumstances described, a due process issue emerges. An eighth circuit case,decided on due process grounds, held that a police officer cannot shoot at afleeing forcible felon unless the "felon could not be otherwise apprehendedand . . the felon had used deadly force in the commission of thefelony. ... 92 This holding was reversed, however, by the United StatesSupreme Court9 3 for lack of standing. No seventh circuit cases have decidedthis issue, and other jurisdictions have not followed this decision.9 4 Sevenstates, however, have adopted the Model Penal Code provision that requiresthat the felon be using deadly force in the commission of his act before theofficer can shoot.9 5

91. ILL. REV. STAT. ch. 38, § 2-8 (1977).92. Mattis v. Schnarr, 547 F.2d 1007, 1020 (8th Cir. 1976), rev'd on other grounds, sub

nom Ashcroft v. Mattis, 431 U.S. 171 (1977) (eighteen-year-old suspect shot and killed as hetried to escape from officer who had caught him breaking into an office).

93. Ashcroft v. Mattis, 431 U.S. 171 (1977). The United States Supreme Court refused todecide the issue and reversed on grounds that the case was moot since plaintiff had failed toallege damages and the police officer's belief in the state law was a valid defense of good faith.

94. Qualis v. Parrish, 534 F.2d 690 (6th Cir. 1976) (unsuccessful civil rights action broughtagainst officers who used deadly force to prevent escape from arrest for felonious assault); Wolfev. Thayer, 525 F.2d 977 (5th Cir. 1976) (parents of a boy shot while fleeing a burglary denieddamages for unconstitutional deprivations of his life); Jones v. Marshall, 383 F.Supp. 358 (D.Conn. 1974) (statute that allowed officers to shoot a fleeing felon who was a suspected au-tomobile thief upheld).

95. Seven states have adopted the Model Penal Code's provision, according to Sullivan,Violation Cases End for Six Officers, 32 ILL. POLICE Ass'N OFFICIAL j., February, 1979, at 24.The provision reads in pertinent part:

§ 3.07 Use of Force in Law Enforcement(1) USE OF FORCE JUSTIFIABLE TO EFFECT AN ARREST. Subject to the

provisions of this Section and of Section 3.09, the use of force upon or toward theperson of another is justifiable when the actor is making or assisting in making anarrest and the actor believes that such force is immediately necessary to effect alawful arrest.

(2) LIMITATIONS OF THE USE OF FORCE(a) The use of force is not justifiable under this section unless:

(i) the actor makes known the purpose of the arrest or believes it isotherwise known by or cannot reasonably be made known to the person to be ar-rested; and

(ii) when the arrest is made under a warrant, the warrant is valid or be-lieved by the actor to be valid.

(b) The use of deadly force is not justifiable under this section unless:(i) the arrest is for a felony;* and(ii) the person effecting the arrest is authorized to act as peace officer or is

assisting a person whom he believes to be authorized to act as a peace officer; and(iii) the actor believes that the force employed creates no substantial risk

of injury to innocent persons; and

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Moreover, official police training policy describes at least eight factors thatgovern the determination of when it is necessary 96 to use deadly force tostop the escape of a forcible felon. Many of these standards have been usedto interpret the statute by the Illinois courts. Police officers are not expectedto exhaust a checklist before shooting, but public policy demands a cogni-zance of these factors. First, the age of the suspect has importance. 97 Sec-ond, the relative size of the individuals bears a direct relationship to thelevel of force that may be practically and legally required. 98 A more physi-cally imposing police officer probably would be expected to subdue a resist-ing criminal without resorting to deadly force. 99 Third, the availability ofassistance is another controlling factor in deciding whether to use deadlyforce. Deadly force cannot be justified when the felon may be as easily ap-prehended by seeking available assistance.100 Fourth, the known criminalhistory of an offender is important, especially that part revealing prior as-saults on police officers. 10 1 Fifth, whether the suspect was known to be

(iv) the actor believes that:(1) The crime for which the arrest is made involved conduct including

the use of threatened use of deadly force; or

(3) there is substantial risk that the person to be arrested will causedeath or serious bodily harm or his apprehension will be delayed.* In Illinois, this would be changed to "forcible felony."

ALl MODEL PENAL CODE §. 3.07 (1962).96. See Model Test, supra note 16, at 29, question 110.97. See People v. Muldrow, 30 Ill. App. 3d 209, 332 N.E.2d 664 (1st Dist. 1975) (self-

defense argument more difficult when defendant and deceased are same age); People v. Givens,26 Ill. 2d 371, 186 N.E.2d 225 (1962) (elderly man justified in using gun in self-defense due tofear of physical harm from young, robust assailant).

98. People v. Givens, 26 Ill. 2d 371, 186 N.E.2d 225 (1962) (held age and size of partiesimportant in calculating whether a self-defense shooting was justified); People v. Kelly, 40 Ill.App. 3d 315, 352 N.E.2d 240 (1st Dist. 1976) (physical stature of victim is element to beconsidered in determining whether deadly force is justified); People v. Muldrow, 30 I1. App.3d 209, 332 N.E.2d 664 (1st Dist. 1975) (where defendant outweighed decedent by 80 pounds,it was more difficult to show self defense).

99. See Kyle v. City of New Orleans, 353 So.2d 969 (La. 1977) (factors to be considered indetermining whether a shooting in self-defense was justified include: known character of arres-tee, nature of the offense, physical size, strength and weaponry of the officers compared to thearrestee, and chances of escape and alternative methods of arrest). See RESTATEMENT (SECOND)OF TORTS § 132, Comment c (1965) (relative strength and size of officer and suspect is factorwhen determining reasonableness of force used).

100. Schnepf v. Grubb, 125 Il. App. 2d 432, 261 N.E.2d 47 (4th Dist. 1970) (availability ofassistance considered when determining reasonableness of force used). See Dyson v. Schmidt,109 N.W.2d 262 (Minn. 1961) (policeman held liable for accidentally shooting bystander duringgun battle in crowded movie theater because suspect could have been more safely apprehendedhad the officer called in available assistance).

101. Schnepf v. Grubb, 125 II. App. 2d 432, 261 N.E.2d 47 (4th Dist. 1970) (a policeman,aware of a deceased's prior bad conduct and personal vendetta against that policeman, wasjustified in reasonable belief that deadly force was necessary). People v. Brumbeloe, 97 III. App.2d 370, 240 N.E.2d 150 (1st Dist. 1968), and People v. Honey, 69 Ill. App. 2d 429, 217 N.E.2d

DEADLY FORCE

armed is considered.1 0 2 A suspect motioning toward a pocket in which he isknown to carry a weapon increases his chances of being shot by the officer.

Sixth, the place of arrest can be a factor. Is the suspect fleeing into a dead-

end alley or into an unfamiliar neighborhood?103 Seventh, the presence ofthe suspect's companions can have a legal as well as practical sig-nificance.10 4 Lastly, differences in the available lighting present entirely dif-ferent tactical situations.' 0 5 At night, a fleeing felon can kill or escape morereadily than during the day.

As in self-defense situations, the police officer is protected if his belief inthe necessity of preventing an escape is reasonable, even if there exists anerroneous perception of fact. In Pearson v. Taylor, 10 6 decided under a simi-

lar statute in another jurisdiction, a nocturnal police search for two murdersuspects, known to be heavily armed, resulted in the discovery of two menwalking along a road. The officers pulled the squad car thirty feet behind thesuspects and flashed the headlights upon the men. Twice the officers toldthem to approach with their hands uplifted. The suspects ignored the com-mand and approached in a crouched position. The officers then fired uponthem. Unknown to the officers at the time, the suspects were unarmed, hadjust telephoned the police, and were in fact surrendering. The court heldthat, under the circumstances, the officers' beliefs were reasonable and justi-fiable. Similarly, as long as the police officer has a reasonable belief thatdeadly force is necessary to prevent the escape of the forcible felon, he isprotected even though no felony has been committed in fact. 107

371 (1st Dist. 1966), are two cases which state that prior assaults with deadly weapons bydeceased on defendant may cause defendant to reasonably believe deadly force is necessary todefend himself.

102. People v. Stapleton, 300 I11. 471, 133 N.E. 224 (1921) (when deceased pulled gun first,the defendant was justified in using deadly force and shooting deceased); People v. Honey, 69I1l. App. 2d 429, 217 N.E.2d 371 (1st Dist. 1966) (deceased had previously pulled gun frompocket when attacking defendant and when he repeated the same motion for his pocket severaldays after the first incident, the defendant was justified in using deadly force).

103. Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964) (defendant officer had reasonablebelief to think deadly force was necessary to effect the arrest when he had no knowledge of theneighborhood into which the arrestee was fleeing).

104. People v. Fort, 91 I. App. 2d 212, 234 N.E.2d 384 (1968). Police officers undertook toarrest defendant in the presence of other hostile individuals. An officer testified that the indi-viduals were attempting to remove defendant from custody. The court held that the officers weretherefore justified in using any force necessary to effect the arrest.

105. See Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964). See also R. BROOKS, OF-

FICER DOWN, CODE THREE 95, 242 (1975) [hereinafter cited as R. BROOKS] for a detailing ofthe large percentage of police officers killed under poor lighting conditions.

106. 116 So. 2d 833 (La. 1959).107. ILL. REv. STAT. ch. 38, § 7-5 (1977). See Moreland, The Use of Force in Effectuating or

Resisting Arrest, 33 NEB. L. REv. 408, 409-12 (1954). This rule is not true, however, in alljurisdictions. See also Petrie v. Cartwright, 114 Ky. 103, 70 S.W. 297 (1902); Commonwealth v.Duerr, 158 Pa. Super. 484, 45 A.2d 235 (1946) (despite officer's reasonable belief that fleeingsuspect was a felon, officer is not entitled to use deadly force to apprehend suspect); Waite,Some Inadequacies in the Law of Arrest, 29 MICH. L. REv. 448, 462 (1931).

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Although the police officer is protected on the basis of his reasonable be-lief, the public expects him to be more careful than the private citizen inusing deadly force. For example, long-standing police policy requires officersto be patient if the success of the arrest will not be imperiled. It is prefera-ble that an arresting officer delay the actual moment of custody rather thancause unnecessary harm through an impulsive use of force.108 Also, a policeofficer must use reasonable efforts to apprehend the suspect before heemploys deadly force. 10 9

Typically, a verbal command or warning by the pursuing police officersatisfies the "reasonable efforts" requirement. In Fornuto v. Police Board ofChicago,110 Officer Fornuto avoided dismissal from the police force becausehe shouted, "Halt, police," before shooting a fleeing felon. In foot-pursuit ofa robbery suspect, the officer yelled his warning twice. The suspect whirledaround with a knife, lunged, and turned as if to run. The officer shot thesuspect in the back. In ordering the reinstatement of the officer, the appel-late court for the first district noted that the officer had expended all reason-able alternatives to prevent the suspect's escape, and further held that awarning shot was unnecessary.

When the officer knows the identity of an escaping forcible felon, an addi-tional question concerning the propriety of his use of deadly force arises.Due to the lack of case law in this area, the police officer lacks clearguidelines for his behavior. For example, suppose a police officer respondsto a burglary-in-progress call. As he arrives at the scene of the crime, a well-known burglar observes him and flees from a basement window. The policeofficer recognizes the burglar and yells a command to halt. This particularburglar may never have been known to carry a weapon.1" Does the knowl-edge of the burglar's identity preclude the use of deadly force because anofficer could make an arrest at a later date in a more controlled environ-ment? Some authorities argue that positive knowledge of the identity of afleeing forcible felon precludes the otherwise permissible use of deadly forcebecause further attempts to arrest may be possible. 1 12

108. See Kyle v. City of New Orleans, 353 So. 2d 969 (La. 1977). The court stated that theamount of force used to effect the arrest must be tested under the "reasonable force" standard.Id. at 972. The force used in the case before the court exceeded reasonableness because "[tiheofficers could have delayed the arrest without great risk." Id. at 974.

109. Fornuto v. Police Board of Chicago, 38 Ill. App. 3d 950, 349 N.E.2d 521 (1st Dist.1976) (police officer avoided dismissal from police force by yelling "halt" before shooting);Krantz v. O'Neil, 99 I11. App. 2d 179, 189, 240 N.E.2d 180, 185 (1st Dist. 1968) (court in-structed the jury that reasonable efforts to apprehend the suspect must be made prior to theexecution of justified deadly force). See also RESTATEMENT (SECOND) OF TORTS § 131 (1965)(deadly force may be used once the person reasonably believes that the arrest cannot otherwisebe reasonably effected) (emphasis added).

110. 38 I11. App. 3d 950, 349 N.E.2d 521 (1st Dist. 1976).111. Example taken from Model Test, supra note 16, at 21, question 82.112. C. Travelstead & A. Johnson, id. at 21, question 82.

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This interpretation wrongly engrafts upon the statute the additional ele-ment of a duty to desist and delay even if all other elements justifying theuse of deadly force are present. Eliminating the arresting officer's discretionand requiring him to delay the arrest upon recognition of the arrestee couldendanger innocent citizens. This danger would be present because the arres-tee would be encouraged to avoid subsequent apprehension, and becauseprosecution would be prejudiced through the loss of some evidence obtainableonly through immediate apprehension of the suspect. The plain and or-dinary interpretation of the statute permits the use of deadly force irrespec-tive of the knowledge of a suspect's identity, provided the suspect is defeat-ing the arrest by escape and all other elements of the justification are pres-ent. In all cases, it is clear that if the officer does not know the arrestee'sidentity or whether the arrestee is armed, the officer can justifiably usedeadly force. 113

Arrestee's Escape with Deadly Weapons

When the arrestee is attempting to escape by the use of a deadly weapon,the police officer's alternatives are more defined."14 A police officer is notrequired to chase and disarm one who is resisting arrest, but has the optionof using deadly force if the arrest cannot be made with diligence and cau-tion. 115 If the arrestee is armed with a deadly weapon, a clear indication ofdanger is present. Such an exigency allows the officer to act whether or notthe offender actually has used the weapon. The normal inference, that thearrestee intends to use the weapon to defeat the arrest, is thus given conclu-sive effect. 116

When the option to use deadly force is available, the decision confrontingthe officer is one of timing. At what instant in the sequence of events doesshooting an armed, fleeing arrestee become legally justified? Under commonlaw, the police officer need not withhold fire until the arrestee shoots first.Rather, the officer can shoot when the arrestee commits any overt act whichindicates an attempt to use the weapon. 117 Consider the dilemma thatmight face police officers arresting a non-forcible felon in a house. The sus-pect, facing a large prison term, flees the rear of the house with a pistol inhand. After ignoring repeated commands to halt, the armed felon turnstoward a large tree. The officers can reasonably assume that the suspect in-

113. Id.114. ILL. REV. STAT. ch. 38, § 7-5(a)(1) & (2) (1978).115. Perkins, The Law of Arrest, 25 IOWA L. REv. 201, 268 (1940) [hereinafter cited as

Perkins]. The author quotes from an old decision which stated a view that still prevails today:"[If the victim retains] his purpose of resisting to the death, and to make a running fight, theofficer and his men [are] not bound to risk their lives by rushing on a desperate man, who still[keeps] his gun in his hands." State v. Garret, 60 N.C. 85, 86 (1863).

116. ILL. ANN. STAT. ch. 38, § 7-5 committee comment (Smith-Hurd 1972).117. See Perkins, supra note 115, at 285, where the author discusses this conclusion found in

Hammond v. State, 147 Ala. 79, 41 So. 761 (1906).

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tends to fire at them from behind the shelter of the tree. 118 Depending onthe physical location and personnel variables, the officers could justifiablyshoot the arrestee at any time after the arrestee turned toward the tree.

Frequently, police officers are faced with near-borderline situations inwhich deadly force is not yet justified. Consider the officer who shoots aperson he is attempting to arrest for the misdemeanor of carrying a con-cealed weapon. Because the crime is not a forcible felony, and the arresteeis not escaping by the use of the deadly weapon, the shooting would not bejustified. 119 Thus, mere possession of a weapon is insufficient to trigger theuse of deadly force. 1 20 However, as stated earlier, if the arrestee makes anovert act to use the weapon, such as drawing or pointing the weapon at theofficer, the use of deadly force will be justified. Therefore, the misdemean-ant who flees from arrest wielding a gun could be the target of an officer'sshot.

Escape Endangering Human Life

A police officer is also statutorily authorized to use deadly force in order toprevent an arrestee's escape if the arrestee in any way "indicates he willendanger human life or inflict bodily harm unless arrested without de-lay." 121 For example, an arrestee fleeing from an officer in a high speedchase endangers pedestrians. If the pursuing officer could minimize the riskto pedestrians by shooting the driver, he may use deadly force.122

Preventing Forcible Felonies or Dwelling Felonies

Two other Illinois statutes permit the use of deadly force: 1) where it isnecessary to prevent the commission of a forcible felony, 123 and 2) where itis necessary to prevent the commission of a felony in a dwelling.124 Sincean unauthorized entry into a dwelling with the intent to commit a felonyconstitutues the forcible felony of burglary, these justifications are similar.They authorize the policeman to pursue both the arsonist of a home 125 and

118. See Bailey v. Commonwealth, 310 Ky. 731, 221 S.W.2d 693 (1949) (defendant justifiedin shooting subsequent to discharge of decedent's gun and, as a police officer, justified in using.whatever force necessary to effect an arrest); West Virginia v. Laing, 133 F. 887 (4th Cir. 1904)(affirmed holding that police officer's firing on an armed fleeing suspect was done as a lawfuldischarge of duty).

119. See ILL. lEv. STAT. ch. 38, § 7-5(a)(2) (1977).120. C. Travelstead & A. Johnson, in Model Test, supra note 16, at 24, question 93.121. ILL. REv. STAT. ch. 38, § 7-5(a)(2) (1977).122. A. HARVIE, supra note 76, at 11.123. ILL. REv. STAT. ch. 38, §§ 7-1, -3 (1977).124. ILL. REv. STAT. ch. 38, § 7-2(b) (1977).125. See A. HARVIE, supra note 76, at 9.

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the residential burglar. 1 26 Consider the felon who is guilty of criminalproperty damge in excess of $150.00.127 If he flees and refuses to stop oncommand, the necessity requirement for these statutes is satisfied. If suchactivity occurs in a dwelling, all elements required for a justifiable homicideare present. It should be noted, however, that a mere trespass will neverjustify the taking of a human life. 1 28 The statute requires a trespass to adwelling and the commission of a felony after a refusal to stop before deadlyforce is justified.

Illinois courts have required these additional elements-trespass to adwelling and a commission of a felony-to be clearly present to support theuse of deadly force. For instance, where an owner's premises contain both astore and an upstairs dwelling area, the owner may not threaten an iratecustomer with the use of deadly force in order to remove the customer fromthe store. 129 The significance of the requirement that the offense be com-mitted in a dwelling is graphically illustrated in the case of People v. Dil-lard. 130 In that case, the proprietor of a gas station in a high crime areadiscovered, as he was leaving with the day's receipts, three trespassers be-hind the station. When he fired at the trespassers, they drew illegally pos-sessed firearms and returned the fire. The appellate court for the fifth dis-trict stated that the proprietor's authority to use reasonable force to removethe trespassers did not include the right to use deadly force against meretrespassers. Thus, the court held that, despite the trespassers' illegal posses-sion of firearms, they were justified in returning the proprietor's fire.' 3 '

Prevention of Assault After Riotous Entry

Pursuant to the fifth Illinois justification, deadly force may be used toprevent an assault that occurs after a violent riotous entry into a dwell-ing.132 For example, in People v. Eatman,133 tenants closed the door onthe landlady and her bodyguard, who had come to collect the rent. Themanagement forcibly kicked the door in, refused to leave, and struck theresidents. The tenants responded with deadly force. The Illinois SupremeCourt ruled that the occupant of a dwelling need not have a belief of peril to

126. See People v. Post, 39 I11. 2d 101, 233 N.E.2d 565 (1968) (involuntary manslaughterconviction for shooting a fleeing prowler reversed for failure to establish that defendant's act wasreckless). But see People v. Smith, 404 I11. 125, 88 N.E.2d 444 (1949) (shooting unjustified sincebuilding was open to the public).

127. ILL. REV. STAT. ch. 38, § 21-1 (1977).128. People v. Givens, 26 Ill. 2d 371, 186 N.E.2d 225 (1962); People v. Osborne, 278 Ill.

104, 115 N.E. 890 (1917).129. People v. Nichols, 21 III. App. 3d 432, 315 N.E.2d 663 (4th Dist. 1974).130. 5 I11. App. 3d 896, 284 N.E.2d 490 (5th Dist. 1972).131. Id. at 901, 284 N.E.2d at 494.132. ILL. REV. STAT. ch. 38, § 7-2(2) (1977).133. 405 Ill. 491, 91 N.E.2d 387 (1951).

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justify the use of deadly force. In holding that the bodyguard's death wasjustified, the court stated that a strong forcible entry, a show of violence, anda refusal to desist were sufficient to justify the use of deadly force.1 34

Escape From Penal Institution

The sixth and last Illinois justification applies only to law enforcement of-ficers. They may use deadly force to prevent an escape from a penal institu-tion. 1 3 5 The statute requires only a reasonable belief that the escaping pris-oner was lawfully detained. 136 The police officer need not inquire into thenature of pending charges before deciding to use deadly force. Even if theofficer later discovers that the prisoner was held on a mere disorderly con-duct charge, the shooting was still justifiable. However, if the firing policeofficer knew that the prisoner was awaiting trial for less than a forciblefelony, he could face a federal civil rights action.1 37 Further, once the pris-oner completes his escape, deadly force cannot be applied pursuant to thislast statutory justification. 138

POSSIBLE LEGISLATION

As this Article has detailed, the criminal law in Illinois permits a broaduse of deadly force. This year, the Illinois Legislature is considering narrow-ing the scope of a police officer's right to use deadly force. In particular, it is

134. People v, Givens, 26 III. 2d 371, 186 N.E.2d 225 (1962).135. ILL. REV. STAT. ch. 38, § 7-9(b) (1977). See also id. § 1003-6-4(b):

If one or more committed persons injures or attempts to injure in a violent mannerany employee, officer, guard or an), other committed person or damages or attemptsto damage any building or workshop, or any appurtenances thereof, or attempts toescape, or disobeys or resists any lawful command, the employees, officers andguards shall use all suitable means to defend themselves, to enforce the observanceof discipline, to secure the persons of the offenders, and prevent such attemptedviolence or escape; and said employees, officers or guards, or any of them, shall, inthe attempt to prevent the escape of any such person, or in attempting to retakeany such person who has escaped, or in attempting to prevent or suppress violenceby a committed person against another person, a riot, revolt, mutiny or insurrec-tion, be justified in the use of force, including force likely to cause death or greatbodily harm under Section 7-8 of the Criminal Code of 1961 which he reasonablybelieved necessary.

136. Id. § 7-9(b). See ILL. ANN. STAT. ch. 38, § 7-5 committee comment (Smith-Hurd 1972),where the commentator points out that a prison guard is not expected to know the history of aprisoner who is trying to escape.

137. See note 89 and accompanying text supra.138. ILL. ANN. STAT. ch. 38, § 7-5 committee comment (Smith-Hurd 1972). See FISHER,

LAws OF ARRESTS §§ 25-31 (1967). The author points out that a person is not an escapee untilhe has been arrested and reduced to confinement. Thus, at common law, a person fleeing toavoid initial custody is not an escapee.

DEADLY FORCE

examining the officer's right to shoot fleeing forcible felons who have com-mitted non-residential burglaries. 1 39

Six bills were introduced. The most restrictive bill limits the use of deadlyforce to crimes involving the use or threat of deadly force and to situationsin which a delay in the arrest would create a substantial risk that the suspectwould cause death or serious bodily injury. Compromise positions taken byother bills exclude burglaries and non-residentil burglaries from the forciblefelony justification. Proponents of the compromise bills cite six cases inChicago in which suspects had been shot and it later was determined thatthe deceased suspect had been unarmed. 140 However, the proponents over-look the rationale that has long supported the existing law. The proposedlegislative restrictions are contrary to the majority rule in many states havingsimilar statutes. 14 1 Other states go further than Illinois and extend the rightto shoot fleeing felons to citizens.1 4 2

The proposed restrictions, moreover, would encourage a felon to attemptescape. Severe restrictions on a policeman's authority to use deadly forcewould jeopardize his effectiveness in responding to a felony-in-progress call.He might as well go "wearing track shoes and armed only with water pis-tols." 143 In the final analysis, the loss of police officers' lives must be bal-anced against the loss of fleeing felons' lives. Statistically, the largest cate-gory of activity engaged in by police officers at the time of being killed on

139. See Bagley, supra note 11. See also Sullivan, Violation Cases End for Six Officers, 32ILL. POLICE ASS'N OFFICIAL J., Feb. 1979, at 24, 24-25.

140. Id.141. ALASKA STAT. § 11.15.090 (1970); ARiz. REv. STAT. § 13-411 (1956); ARK. STAT. ANN. 9

41-2238 (1964); CAL. PENAL CODE §§ 196, 197 (West 1969); COLO. REV. STAT. §§ 16-3-101,18-1-707 (1973); CONN. GEN. STAT. ANN. § 53a-22 (West 1973); FLA. STAT. ANN. § 782.02

(West 1970); GA. CODE ANN. § 26-901 (1977); HAWAII REV. STAT. § 703-307 (1976); IDAHOCODE ANN. § 19-610 (1947); ILL. REV. STAT., ch. 38, § 7-5 (1977); IOWA CODE ANN. § 804.8(1978); KAN. STAT. ANN. § 21-3215 (1970); Ky. REV. STAT. § 431.025 (1974); LA. CODE CRIM.

PROC. ANN. art. 220 (West 1967); MINN. STAT. ANN. § 629.33 (1945); MISS. CODE ANN. §97-3-15 (1972); Mo. ANN. STAT. §§ 544.190, 559.040 (Vernon 1969); MONT. REV. CODES ANN.§§ 94-2512, 94-2513 (1947); NEV. REV. STAT. § 200.140 (1973); N.H. REv. STAT. ANN. § 594,4(1974); N.M. STAT. ANN. § 30-2-6 (1978); OKLA. STAT. ANN., tit. 21, § 732 (West 1951); ORE.REV. STAT. § 161.235 (1974); GEN. LAWS OF R.I., § 12-7-9 (1969); S.D. COMPILED LAWS ANN.§ 22-18-2 (1967); TENN. CODE ANN. § 40-808 (1975); TEXAS CODE CIM. PRoc. art. 15.25(Vernon 1965); UTAH CODE ANN. § 77-13-11 (1978) (warrant required); VT. STAT. ANN., tit. 13,9 2305 (1974); WASH. REV. CODE ANN. § 10.31.050 (1961).

142. Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977) (citizen may shootfleeing felons who have engaged in crimes which threaten death or great bodily harm-ruleapplied retroactively to a citizen who shot the fleeing burglar of a business); Commonwealth v.Chermansky, 430 Pa. 170, 242 A.2d 237 (1968) (citizen may shoot fleeing felon who has commit-ted treason, murder, voluntary manslaughter, mayhem, arson, robbery, common law rape,common law burglary, kidnapping, assault with intent to murder, rape or robbery, or a felonythat normally causes or threatens death or great bodily harm).

143. Peterson v. City of Long Beach, 72 Cal. App. 3d 852, 140 Cal. Rptr. 401, 417 (1977),rev'd, 155 Cal. Rptr. 360, 594 P.2d 477 (1979).

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duty is that of responding to burglary- and robbery-in-progress calls. 144

Prohibition of the right to use deadly force against forcible felons wouldinhibit police officers' readiness to use their firearms and would increase therisk of their being injured. Undoubtedly, the number of police officers killedin pursuit of felons would increase if the law is further restricted.

Traditionally, the strongest curb on the illegal use of deadly force hasbeen the potential civil liabilities of the police officer. The police officer'scivil liability for the improper use of deadly force arose not as a challenge tothe existing law justifying the use of deadly force, but rather as a response tothe harm incurred by the unintentional shooting of innocent persons. Be-cause the measure of civil liability parallels the criminal law of unjustifiableuse of deadly force, 145 the potential for civil liability is a tremendous im-petus for self-restraint.

Despite popular conception, in many typical pursuit situations, the rank-and-file police officer is often a poor marksman. 146 Contrary to Hollywoodrepresentations, a police officer has a greater chance of being shot by thecriminal than of killing the criminal at whom he is shooting. 147 Currently,the typical required firearms training consists of exercises in shooting approx-imately fifty shots at a brightly lit target under perfect shooting condi-tions. 148 This is inadequate because none of the required training gives thepolice officer comprehensive instructions on how to avoid being shot or onhow to conduct himself in a tactical shooting situation. 149 Generally, thesecritical decisions are left to the untrained police officer to learn experien-tially. If the training were expanded to include firearms tactics and to simu-late combat firing under poor lighting and shooting conditions, the officerscould then acquire abilities that would aid them in self-defense. Also, un-necessary shooting potentially would be avoided as a result of the officers'increased confidence.

144. R. BROOKS, supra note 105, at 243-44.

145. La Monte v. City of Belleville, 41 I11. App. 3d 697, 703, 355 N.E.2d 70, 76 (5th Dist.1976).

146. See A. HARVIE, supra note 76, at 15, where it is stated that "[ilt is difficult, if notimpossible to shoot accurately at a moving vehicle, especially from a moving vehicle."

147. R. DALEY, TARGET BLUE (1978). In 1970 in New York, the police had a total of 634

shooting incidents. Six hundred fifty-nine police officers fired 1643 shots, including 183 warningshots, of which only 436 shots hit their targets. Of these 643 incidents, seven officers died, 242were injured and 19 had their firearms taken away from them. Fifty criminals were killed and212 criminals were wounded. Most of these shootings occurred at night. Almost all of theseincidents occurred within seven yards and lasted under two seconds. Only 75 incidents were aHollywood type gun fight with the officer and criminals exchanging multiple shots.

148. Id. at 102. See also Illinois Local Governmental Law Enforcement Officers TrainingBoard, Illinois Firearms Training Program and Standard Police Combat Course (January, 1976)(published by the Illinois Local Governmental Law Enforcement Officers' Training Board, 301N. Second Street, Springfield, Illinois) [hereinafter cited as Illinois Training Program], as itpertains to P.A. 79-652; Moline Police Dept., Moline Police Dept. Combat Firing Range Rules(August, 1979).

149. Illinois Training Program, supra note 148.

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Some jurisdictions have imposed civil sanctions against police departmentsfor failure to provide appropriate firearms training for their police officer. Inthe New York Police Department, a veteran police officer of nine years con-sistently met departmental qualifications with his weapon. Upon surprisingtwo armed robbers from behind, he fired at them from a distance of lessthan eight feet. The officer missed both felons, hitting and killing the victimof the intended robbery with four of the six shots fired.1 5 0 The court im-posed liability upon not only the police officer, but also upon his supervisorsfor failure to train the responsible officer adequately. The New York courtshave further imposed liability for the failure to provide firearms training tostate troopers on moving silhouette targets. 151 The Illinois Courts havebegun to follow this trend and have allowed recovery against a city for thefailure to train a police officer adequately.152

Some police chiefs and sheriffs, in order to avoid costly litigation and ex-pensive judgments, have enacted safety and policy rules for their depart-ments concerning firearms. These regulations can be tailored to fit the re-quirements of the police department, the level of training and proficiency ofthe officers, and the experiences of the department. Most of these regula-tions restrict the police action more than does the criminal law.15a Althoughthese regulations may be more stringent than the state law, police officersmay be discharged pursuant to the requirements of the particular depart-ment. 154 Because they emanate from a source of authority that has a moredirect relevancy for a police officer than a potential liability action in whichthe governmental authority may eventually have to pay, these regulationsoften have a more powerful deterrent effect.

Unfortunately, trial courts have admitted these restrictive departmentalrules into evidence in civil cases 155 as probative evidence of a violation of aduty to the public' 56 and a violation of an individual department's firearmregulation. Such rules have contributed toward sizeable judgments even

150. Meinstinsky v. City of New York, 128 N.Y.S.2d 483 (1954), rev'd, 285 App. Div. 1153,140 N.Y.S.2d 212 (1955), affd, 309 N.Y. 998 132 N.E.2d 900 (1956).

151. Piatkowski v. State, 43 Misc.2d 424, 251 N.Y.S.2d 354, (1964).152. Peters v. Bellinger, 22 Ill. App. 2d 105, 159 N.E.2d 528 (4th Dist. 1959), rev'd. on

other grounds, 19 I11. 2d 367, 166 N.E.2d 581 (1960) (liability had been based not only on a lackof training but police officer had a felony conviction and had been involved in many streetbrawls.)

153. 73-2 AELE Legal Defense Manual, Police Use of Firearms-I, at 3 (1973) (published byAmericans for Effective Law Enforcement, Inc., South San Francisco, Calif.); Firearmas-l,supra note 77, at 19.

154. See Chastian v. Orlando Civil Serv. Comm'n, 327 So. 2d 230 (Fla. App. 1976) (courtaffirmed dismissal of defendant who had exceeded strict departmental standards for the justifieduse of deadly force).

155. Krantz v. O'Neil, 99 I11. App. 2d 179, 240 N.E.2d 180 (1st Dist. 1968) (firearms regula-tions admissible on behalf of defendant police officer).

156. Sauls v. Hults, 304 F. Supp. 124, 130 (E.D. La. 1969).

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when the shooting is justified under state law.157 Unless the legislature actsto prohibit the admissibility of police regulations in civil liability lawsuits,police departments effectively will be deterred from promulgating safety andpolicy guidelines.

In response to judicial intervention into issues concerning the negligentuse of justifiable deadly force, the Illinois Legislature has acted twice. First,the Illinois Police training Act was amended to require all full-time policeofficers appointed after January 1, 1976, successfully to complete a pre-scribed basic training course within the first six months of their initialemployment or to forfeit their positions. 158 Second, part-time police officersare prohibited from carrying firearms unless they successfully complete atwenty-four hour course 159 requiring the proficient use of firearms withstationary targets under the control situation of a police range, and the studyof the legal and moral ramifications of the use of deadly force.160 Theselaws indicate an attempt to establish minimum guidelines for the training ofpolice officers and a desire to insulate police chiefs and supervisors fromvicarious civil liability. It is hoped that through concise standard guidelinesevery officer can be trained to the same level of minimum proficiency. Non-compliance with these training laws could result in the imposition of strictliability against a municipality or, at the least, be persuasive proof of liabilityfor the negligent use of deadly force by a police officer. 6 '

The next step in the law of civil liability concerning police officers wouldbe to allow recovery for the wrongful act of a police officer when the officerfails to stop the illegal use of force of another officer (of the same rank orlower) with whom he is working. For example, suppose two Illinois officerspursued a suspect in a vehicle for a misdemeanor violation. The fleeingdriver hits a tree, and when he attempts to run, one officer wrongfullyshoots and kills him. In a similar situation, both officers were sued, 162 butthe first district appellate court failed to resolve a crucial issue: is an officerwho is in a position to prevent the illegal use of deadly force liable for his

157. See Crundt v. City of Los Angeles, 2 Cal. 3d 575, 468 P.2d 825, 86 Cal. Rptr. 465(1970). A police training manual outlined restrictive justifications for the use of deadly force.The court held that the manual had been improperly excluded from evidence at the trial andthat plaintiff was deprived of a crucial theory in her case because of its exclusion. Contra, Cityof St. Petersburg v. Reed, 330 So. 2d 256 (Fla. App. 1976) (police department cannot imposeadditional civil liability on their police officers by adopting voluntary restrictive guidelines onthe use of deadly force).

158. ILL. REV. STAT. ch. 85, §§ 506, 508, 508.1 (1977) (originally enacted as Act of Oct. 1,1975, P.A. 79-720, 1975 I11. Laws, which amended §§ 1, 6, & 8 of the Illinois Police TrainingAct of 1965 and added § 8.1).

159. ILL. REV. STAT. ch. 85, §§ 501, 512 (1977) (originally enacted as Act of Aug. 29, 1975,P.A. 79-652, 1975 II1. Laws).

160. Illinois Training Program, supra note 148.161. 51226 Op. Att'y Gen. (April 7, 1977).162. Young v. Gossling, 23 I11. App. 2d 426, 163 N.E.2d 532 (1st Dist. 1960).

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failure to do so? Indeed, is an officer who explicitly encourages an unjus-tiffied or excessive use of force liable for the results of his encouragement? Apolicy of coliability would discourage improper use of firearms becausepolice officers would have a duty to restrain each other before the instant ofshooting.

CONCLUSION

Illinois statutes describe six instances in which police officers are justifiedin using deadly force. Despite repeated judicial refinement and interpreta-tion of these six provisions, several areas of legal uncertainty remain. Anoff-duty police officer still cannot be sure whether it is illegal to carry a gunoutside of his jurisdiction, or whether he can shoot at a fleeing forcible felonwhom he recognizes, or to what extent he may be held liable for shooting atfleeing forcible felons. With regard to the plaintiff's lawyer, he has availableexpanded legal theories with which to sue not only the officer, but also theofficer's supervisors and municipality for the failure to provide sophisticatedfirearms training. Despite repeated public outcry, the courts have en-trenched the police officer's rights to use deadly force. However, even withstatutory modification and legal refinement, the police officer will alwayshave the capability to be "judge, jury, and executioner" in these instances.Therefore, the answer to cries of abuse lies in improving officer training.

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